England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday 19 December 2002

Mr Justice Stanley Burnton:

Introduction

1. This case concerns the inter-relationship of the provisions of the Mental Health Act 1983 ("the MHA") with those of the Criminal Justice Act 1991 in relation to discretionary life prisoners who have been made the subject of a transfer direction under section 47 of the MHA and a restriction direction under section 49 of that Act. The detention of such prisoners is subject to two statutory regimes, that of the MHA and that of penal legislation. Persons who are detained under either one of these regimes have a Convention and a statutory right to have the lawfulness of their detention reviewed by an impartial and independent tribunal, in the case of those detained under the Mental Health Act by a Mental Health Review Tribunal and in the case of discretionary life prisoners, after the expiration of the penal period of their sentence, by the Parole Board. Someone such as the Claimant, who is detained under both regimes, must have his case for his discharge from detention considered both by the tribunal and the Board, and both must consider that his continued detention is unnecessary if he is to be released.
2. The Claimant was sentenced to life imprisonment in 1989. His tariff, as it was then known, i.e. the minimum period of his detention, imposed for punishment and deterrence (the "relevant part" of his sentence for the purposes of section 34 of the Criminal Justice Act 1991), was determined to be 6 years, and it expired in 1995. Following his conviction, the Home Secretary made a transfer direction under section 47 of the Mental Health Act pursuant to which he was transferred to Ashworth Hospital in 1993. In addition, the Home Secretary made a restriction direction in respect of the Claimant, under section 49 of the MHA. His last application to a Mental Health Review Tribunal was heard on 25 March 2002. They decided that he continued to suffer from a psychopathic disorder and mental illness of a nature and degree that met the statutory criteria for his detention in a mental hospital, although they suggested that he be transferred from Ashworth (which is a secure unit) to a medium secure unit. Because he is detained under the MHA, his case has not been considered by the Discretionary Lifers Panel ("the DLP") of the Parole Board.
3. It is common ground between counsel for the Claimant and the Home Secretary that, as the relevant statutes have been interpreted until now, in certain circumstances if a Mental Health Review Tribunal decides that the Claimant is no longer detainable under the Mental Health Act, the intervention of the Home Secretary is required for his case to be referred to the Parole Board. In practice, in such circumstances, the Home Secretary always does so refer the prisoner's case to the Parole Board: it is his stated policy to do so. Indeed, he gave the Claimant a written assurance that:

"In the event that (the Mental Health Unit of the Home Office) receive a recommendation from the Responsible Medical Officer or the Mental Health Review Tribunal that Mr D no longer requires detention in hospital for medical treatment the Secretary of State will refer his case to the Parole Board/Discretionary Lifers Panel."

4. However, the Claimant contends that such a reference by the Secretary of State would be made in the exercise of a discretion, rather than in compliance with a duty; that if so the Claimant has no statutory right to have the lawfulness of his detention reviewed by an independent court or tribunal as required by Article 5.4 of the European Convention on Human Rights: that under the Convention he is entitled to an unqualified right to such a review; and that the need for the Home Secretary to decide to make, and then to make, a reference is inconsistent with that right.
5. The Claimant also complains that he has been or will be deprived of a right to have the lawfulness of his detention decided by an independent tribunal "speedily", as required by Article 5.4. This is because his applications to the Mental Health Review Tribunal and to the Parole Board must be made consecutively: his case will not be referred to the Parole Board unless and until the Mental Health Review Tribunal decides that he no longer needs to be detained under the Mental Health Act. Thus to the statutory minimum 12-month period between applications to the Tribunal (section 70 of the MHA) must be added the period before his application is heard; and then, if that application is successful, the application to the Parole Board will not be heard for about 6 months: the Discretionary Lifer Panel has a timetable of 24 weeks between referral and decision.
6. The plethora of legislation on sentencing means that the legal position of the Claimant is subject to statutory provisions that have been repealed; indeed, in one case the repealing provision has been repealed. The repealing statutes do not set out in a schedule or otherwise the provisions applicable to persons who remain subject to the repealed provisions. In other cases, there has been amendment of complex provisions by reference, rather than by enactment of the text as amended. The result is that it is extraordinarily difficult for a lawyer, a judge, and most importantly a prisoner, to discover the statutory provisions that apply to someone in the position of the Claimant. The relative inaccessibility of the relevant legislation is not consistent with the rule of law.

The relevant provisions of the MHA

7. By section 47(3), the transfer direction made in respect of the Claimant under that section had the same effect as a hospital order made under section 37, i.e. the order that might have been imposed by the court on his conviction if the evidence required by section 37(2) had then been before it. By section 40(1), a hospital order (and therefore a transfer direction) is sufficient authority for the managers of the hospital specified in the order to detain him.
8. Section 41 of the Act confers wide powers on the Home Secretary over offenders in respect of whom the court makes, in addition to a hospital order, a restriction order. So far as relevant, it provides as follows:

"41 Power of higher courts to restrict discharge from hospital

(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as "a restriction order".

(2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.

(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows—

(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below;

(aa) none of the provisions of Part II of this Act relating to after-care under supervision shall apply;

(b) no application shall be made to a Mental Health Review Tribunal in respect of a patient under section 66 or 69(1) below;

(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely—

PRIVATE(i) power to grant leave of absence to the patient under section 17 above;

(ii) power to transfer the patient in pursuance of regulations under section 19 above [or in pursuance of subsection (3) of that section]; and

(iii) power to order the discharge of the patient under section 23 above;

and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible medical officer; and

(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time;

and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule.

(4) A hospital order shall not cease to have effect under section 40(5) above if a restriction order in respect of the patient is in force at the material time.

(5) Where a restriction order in respect of a patient ceases to have effect while the relevant hospital order continues in force, the provisions of section 40 above and Part I of Schedule 1 to this Act shall apply to the patient as if he had been admitted to the hospital in pursuance of a hospital order (without a restriction order) made on the date on which the restriction order ceased to have effect.

(6) While a person is subject to a restriction order the responsible medical officer shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require."

9. If a transfer direction has been given by the Home Secretary in respect of any person, section 41 authorises the Home Secretary to direct that that person shall be subject to the special restrictions set out in section 41. Such a direction is known as a "restriction direction", and by section 49(2) it has the same effect as a restriction order made under section 41. A person subject to a restriction direction or a restriction order is a "restricted patient" (section 79).
10. A restricted patient is barred from making an application to a Mental Health Review Tribunal for his discharge by section 41(3)(b). An application to a tribunal in respect of a restricted patient who is subject to a restriction direction is the subject of section 74:

"74.

(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to … a restriction direction, or where the case of such a patient is referred to such a tribunal, the tribunal –

(a) shall notify the Secretary of State whether, in their opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 73 above; and

(b) if they notify him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital.

(2) If in the case of a patient not falling within subsection (4) below –

(a) the Tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and

(b) within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the Tribunal that the patient may be so discharged,

the Tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient.

(3) Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in subsection (2)(b) above because the Secretary of State has not given the notice there mentioned, the managers of the hospital shall, unless the Tribunal have made a recommendation under subsection (1)(b) above, transfer the patient to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.

(4) If, in the case of a patient who is subject to a transfer direction under section 48 above, the Tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the Tribunal have made a recommendation under subsection (1)(b) above, by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.

(5) Where a patient is transferred or remitted under subsection (3) or (4) above the relevant hospital direction and the limitation direction or, as the case may be, the relevant transfer direction and the restriction direction shall cease to have effect on his arrival in the prison or other institution.

(6) Subsections (3) to (8) of section 73 above shall have effect in relation to this section as they have effect in relation to that section, taking references to the relevant hospital order and the restriction order as references to [the hospital direction and the limitation direction or, as the case may be, to the transfer direction and the restriction direction.

(7) This section is without prejudice to sections 50 to 53 above in their application to patients who are not discharged under this section."

11. As can be seen, section 74(1) and (6) refer back to section 73. Section 73 is concerned with the discharge of restricted patients by tribunals, and refers on to section 72. Section 72(1) sets out the familiar test to be applied by a tribunal in deciding whether to direct the discharge of a patient:

"(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and –

(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if they are not satisfied –

(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or

(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;

(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied –

(i) that he is then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

(ii) that it is necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment; or

(iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself."

12. Section 73(1) and (2) are as follows:

"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if –

(a) the tribunal are not satisfied as to the matters mention in paragraph (b)(i) or (ii) of section 72(1) above; and

(b) the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2) Where in the case of any such patient as is mentioned in subsection (1) above –

(a) paragraph (a) of that subsection applies; but

(b) paragraph (b) of that subsection does not apply,

the tribunal shall direct the conditional discharge of the patient."

13. Lastly, section 50 provides:

"(1) Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person's sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may –

(a) by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or

(b) exercise any power of releasing him on licence or discharging him under supervision which would have been exercisable if he had been remitted to such a prison or institution as aforesaid,

and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect."

14. It can be seen that a patient who is returned to prison or another institution as a result of a favourable expression of opinion by a tribunal under section 74(1) ceases, by virtue of subsection (5), to be subject to a hospital direction and limitation direction, or transfer direction and restriction direction, relating to him. If, however, the tribunal notify the Secretary of State that he should be conditionally discharged, but express the opinion that if he is not discharged (i.e., given his liberty as a result of the Secretary of State giving the requisite notice under subsection (2)(b)), he should continue to be detained in hospital, if he is not discharged he remains in hospital subject to compulsory detention under the MHA. Section 74(5) does not apply to him, and his hospital direction and limitation direction or, as the case may be, his transfer direction and restriction direction continue to have effect. He remains so detained even though the Mental Health Review Tribunal must have determined that he did not fulfil the criteria for compulsory detention under section 72, but were not satisfied that it was not appropriate for the patient to remain liable to be recalled to hospital for further treatment. In the case of a life prisoner who has served his minimum term, the only reason for his continued detention, where that is not required under the MHA, is the risk he would pose to the public if he were released: a risk which should be the subject of consideration and decision by the Parole Board.
15. It is common ground that the Claimant's access to the Parole Board is the subject of section 34 of the Criminal Justice Act 1991, which continues to apply to him notwithstanding its repeal by the Crime (Sentences) Act 1997. Section 34 provides;

"(1) A life prisoner is a discretionary life prisoner for the purposes of this Part if –

(a) his sentence was imposed for a violent or sexual offence the sentence for which is not fixed by law; and

(b) the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served a part of his sentence specified in the order.

(2) A part of a sentence so specified shall be such part as the court considers appropriate taking into account

(a) the seriousness of the offence, or the combination of the offence and other offences associated with it; and

(b) the provisions of this section as compared with those of section 33(2) above and section 35(1) below.

(3) As soon as, in the case of a discretionary life prisoner –

(a) he has served the part of his sentence specified in the order ("the relevant part"); and

(b) the Board has directed his release under this section,

it shall be the duty of the Secretary of State to release him on licence.

(4) The Board shall not give a direction under subsection (3) above with respect to a discretionary life prisoner unless –

(a) the Secretary of State has referred the prisoner's case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

(5) A discretionary life prisoner may require the Secretary of State to refer his case to the Board at any time –

(a) after he has served the relevant part of his sentence; and

(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and

(c) where he is also serving a sentence of imprisonment for a term, after he has served one-half of that sentence;

and in this subsection "previous reference" means a reference under subsection (4) above or section 39(4) below made after the prisoner had served the relevant part of his sentence.

(6) …

(7) …."

16. The Claimant was brought within the provisions of section 34 by the certificate of the Secretary of State given under the transitional provisions in paragraph 9(1) of Schedule 12 to the 1991 Act:

"This paragraph applies where, in the case of an existing life prisoner, the Secretary of State certifies his opinion that, if –

(a) section 34 of this Act had been in force at the time when he was sentenced; and

(b) the reference in subsection (1)(a) of that section to a violent or sexual offence the sentence for which is not fixed by law were a reference to any offence the sentence for which is not so fixed,

the court by which he was sentenced would have ordered that that section should apply to him as soon as he had served a part of his sentence specified in the certificate."

Whether this provision raises issues under Article 5 has not been argued before me.

17. If a discretionary life prisoner who has served the minimum period (or "relevant part") of his detention is returned to prison under these provisions, he may require the Secretary of State, under section 34 of the Criminal Justice Act 1991, to refer his case to the Parole Board for a review of his continued detention. If the Parole Board direct his release under that section, it is the duty of the Secretary of State to release him on licence: section 34(3).
18. Under the law as presently understood and applied, however, a discretionary life prisoner who has served the minimum period of his detention but who remains also compulsorily detained under the MHA has no statutory right to apply to the Parole Board, or to require the Secretary of State to refer his case to the Board under section 34(5) of the 1991 Act, for it to review the lawfulness of his continued detention. That is because in R v Secretary of State for the Home Department ex parte Hickey (No. 1) [1995] QB 43 the Court of Appeal decided that section 34(5) on its true construction does not confer on prisoners who are also detained under the MHA a right to require the Secretary of State to refer their case to the Board. Rose LJ said at page 56, in a judgment with which the other members of the court agreed:

"There is nothing, in my judgment, in the Act of 1991 to suggest that Parliament intended that its provisions should impinge on the circumstances of discharge contained in the Act of 1983. Indeed, as Mr. Pannick [counsel for the Secretary of State] (in my judgment, rightly) pointed out, the proper discharge of functions by the Parole Board under the Act of 1991 would be impossible if it were the case that the person under consideration was still in receipt of medical treatment, in accordance with a transfer under the Act of 1983.

Accordingly, the answer to Mr. Fitzgerald's [counsel for the prisoner's] submissions, in my judgment, is this. First, it is right that the applicants are existing life prisoners, but it does not follow from that that they are eligible for certification. Secondly, although section 34(5) and Schedule 12, paragraph 9, confer a right to a hearing, that is a right which is conferred only on someone who is subject solely to the provisions of the Act of 1991. It is not a right conferred on patients. Thirdly, as to the submission that if Parliament had intended to deny a hearing to those subject to transfer it would have said so, it seems to me that that does not at all follow, bearing in mind that those in hospital already have, since 1983, if not before, procedures including a right to a periodic judicial hearing."

19. As has been seen, persons remaining in hospital by reason of a decision of the Secretary of State following a tribunal opinion, under section 74 of the MHA, that they would be entitled to be conditionally discharged, remain subject to compulsory detention under that Act. On the basis of Hickey, therefore, they have no statutory right to have their case referred to the Parole Board. However, in such circumstances it is the stated policy of the Secretary of State to refer their case to the Board. His policy was set out in a written parliamentary answer cited by Rose LJ in Hickey at pp.53-54:

"The cases of discretionary life prisoners in this category are referred to the Parole Board under section 34 of the Act of 1991, while they remain in hospital, in the same way as if they had been remitted to prison."

If the Board conclude that it is no longer necessary for the prisoner (who on the present hypothesis does not fulfil the criteria for detention under the MHA) to be confined for the protection of the public, they may give a direction under section 34(3)(b), whereupon it is the duty of the Secretary of State to release him on licence.

20. It is not suggested that the fact that persons such as the Claimant are subject to two statutory regimes controlling their continued detention is of itself inconsistent with any Convention right. Mr Gordon QC, for the Claimant, did not suggest that a Mental Health Review Tribunal and the Discretionary Lifer Panel of the Parole Board are not each a "court" for the purposes of Article 5.4: they both clearly are. The principal issue in the present case is whether the above policy of the Secretary of State satisfies the requirements of Article 5.4. In Hickey the Court of Appeal seems to have assumed that it did. Rose LJ said, at [1995] QB 56:

"For my part, I see nothing incompatible with the Court of Human Rights ruling in Thynne v. United Kingdom (1990) 13 E.H.R.R. 666 in the procedure laid down by the Act of 1983. Nor do I see anything unjust or illogical in two separate codes existing which cannot be triggered simultaneously, but each of which at an appropriate time, depending on the circumstances, can be triggered so as to achieve a judicial hearing. On the contrary, when Parliament passed the Act of 1991 it knew of the Act of 1983 scheme generally and of its section 50 provisions for discharge dependent on medical opinion specifically."

However, the issue before me does not appear to have been expressly raised in Hickey, which was decided before the Human Rights Act 1998 came into force. In any event, the jurisprudence of the European Court of Human Rights has moved on since it was decided.

21. For the Secretary of State, Ms Lieven submitted that the policy of the Secretary of State, enforceable by means of judicial review, satisfies the requirements of Article 5.4. Mr Gordon submitted that it did not: that because the Claimant has no statutory right to have his case referred to the Parole Board in the circumstances described above, he is not "entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful" as required by Article 5.4 of the Convention. He relied upon the recent decision of the European Court of Human Rights in Benjamin and Wilson v United Kingdom (28212/95 26.9.02).
22. Benjamin and Wilson concerned "technical lifers". Benjamin had been sentenced to life imprisonment for rape, and had, like the Claimant in the present case, been subsequently made the subject of a transfer direction and a restriction order under sections 47 and 49 the MHA. The Secretary of State later decided that he should be regarded as a "technical lifer", that is a person who was suffering from mental disorder at the time of his offence, so that a hospital order would have been made in respect of him if the necessary evidence had been available when he was sentenced rather than a sentence of imprisonment. In the case of technical lifers, it was the policy of the Secretary of State to follow a recommendation of a Mental Health Review Tribunal that he should be discharged. The Secretary of State contended although a tribunal did not have the power to order their discharge under section 74, his policy of accepting the recommendation of a tribunal satisfied Article 5.4.
23. It is worth setting out the relevant part of the judgment of the Court:

"B. The Court's assessment

33. Article 5 § 4 provides a crucial guarantee against the arbitrariness of detention, providing for detained persons to obtain a review by a court of the lawfulness of their detention both at the time of the initial deprivation of liberty and, where new issues of lawfulness are capable of arising, periodically thereafter (see, inter alia, Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III, § 123, and Varbanov v. Bulgaria, no. 31365/96, ECHR 2000-X, § 58). While the "court" referred to in this provision does not necessarily have to be a court of law of the classic kind integrated within the judicial machinery of the country, it does denote bodies which exhibit the necessary judicial procedures and safeguards appropriate to the kind of deprivation of liberty in question, including most importantly independence of the executive and of the parties (see De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, pp. 41-42, §§ 76 and 86; X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p.23, § 53, and Weeks v. the United Kingdom judgment of 2 March 1987, Series A no. 114, p. 30, § 61).

34. In addition, as the text makes clear, the body in question must have not merely advisory functions but must have the competence to "decide" the "lawfulness" of the detention and to order release if the detention is unlawful (see the above-mentioned Weeks judgment, loc. Cit., Singh v. the United Kingdom judgment of 21 February 1996, Reports 1996-I, § 66, D.N. v. Switzerland, [GC], no.27154/95, ECHR 2001-III, § 39).

35. It is not contested in the present case that the applicants who were both detained in a hospital at the introduction of this application had the possibility of having their continued detention reviewed by the MHR Tribunal which satisfied the requirement of independence. It did not however have the power to order release.

36. The Government argued that as the Secretary of State followed a practice of following the Tribunal's recommendation this did not deprive the Tribunal's review of an effective decision-making function. While they have referred to previous cases concerning the relevance of administrative practices and policies, the Court observes that these judgments examined complaints under Article 8 of the Convention where issues arose as to whether certain measures were "in accordance with the law". In that context, the existence of administrative practices may indeed have a bearing on the conditions of lawfulness of measures. Under Article 5 § 4 however, the plain wording of the provision refers to the decision-making power of the reviewing body. In this case, the power to order to release lay with the Secretary of State, even though he may have been under some constraints of administrative law as regarded the situations in which he could or could not depart from a policy that had created legitimate expectations. The ability of an applicant to challenge a refusal by the Secretary of State to follow his previous policy in the courts would not remedy the lack of power of decision in the Tribunal. Article 5 § 4 presupposes the existence of a procedure in conformity with its provisions without the necessity to institute separate legal proceedings in order to bring it about. Similarly, although both parties appear to agree that the Secretary of State, following entry into force of the Human Rights Act 1998, would not be able lawfully to depart from the Tribunal's recommendation, this does not alter the fact that the decision to release would be taken by a member of the executive and not by the Tribunal. This is not a matter of form but impinges of the fundamental principle of separation of powers and detracts from a necessary guarantee against the possibility of abuse (see, mutatis mutandis, Stafford v. the United Kingdom, [GC] no. 46295/99, 28 May 2002, ECHR 2002-…, § 78).

37. Nor does the Court accept the Government's argument that the applicants cannot claim to be victims, the first applicant since he has been released when the Tribunal so recommended and the second applicant as his release had never been recommended. Both applicants, the first applicant until the date of his release in January 2001, were entitled to have a review of the lawfulness of their continued detention by a body satisfying the requirements of Article 5 § 4. As the Tribunal could not order the release of the applicants, they were not able to obtain such a review.

38. Accordingly, there has been a violation of Article 5 § 4 of the Convention."

24. Benjamin and Wilson is authority for the proposition that Article 5.4 requires the court to which it refers to have the legal power to direct the release of a prisoner. Ms Lieven sought to distinguish it on the basis that it concerned the powers of the court, not the procedure for access to the court. In my judgment, Benjamin and Wilson cannot be so distinguished. The word "entitled" in Article 5.4 connotes an enforceable right. If an act of the executive is required for a person to have access to a court, that person is not "entitled" to take proceedings to test the lawfulness of his detention unless the executive is under a legal duty to grant that access. The Secretary of State is under no such duty in respect of discretionary life prisoners in the circumstances I am considering: he has a discretionary power. In exercising that power, he follows a policy that he has formulated and adopted and that in theory he could modify or abrogate. That he has no intention of doing so, and would never do so, is besides the point. The word "entitled" in Article 5.4 is not satisfied unless there is a legal right of access to a court that can determine the lawfulness of detention and direct the prisoner's release if his detention is not justified.
25. While the decision of the House of Lords in R v Secretary of State for the Home Department ex parte Anderson [2002] UKHL 46, [2002] 4 All ER 1089, is not directly relevant, it encourages me in the conclusion to which I have come. The continued detention of discretionary life prisoners who have served the penal part of their sentence should not depend on the exercise of a discretionary power by the executive branch of government.
26. It follows that unless the law (in particular as stated in Hickey) has been changed as a result of the enactment of the Human Rights Act 1998, there must be a declaration of incompatibility. A declaration of incompatibility is a last resort. Section 3 of the Human Rights Act requires legislation to be read and given effect to in a way that is compatible with Convention rights if it is possible to do so. The interesting and difficult question that arises in the present case concerns the degree of imperative imposed by section 3 and the matters to be taken into account by the court in deciding whether a compatible interpretation of legislation is "possible". Clearly, in a sense a compatible interpretation is possible: the court could simply declare that Hickey is, by reason of section 3, no longer good law. But the decision in Hickey continues to make good sense in the vast majority of cases: it makes no sense to confer on life prisoners who have served the relevant period of their sentence but who are compulsorily detained under the MHA a right to have their case reviewed by the Parole Board. It seems to me that in deciding whether an alternative interpretation of legislation is "possible", the court must take account of the practical and negative consequences of that alternative interpretation. In these circumstances, I do not think that section 3 requires me to hold that Hickey is now wholly abrogated.
27. An alternative course would be to restrict the decision in Hickey to lifers in respect of whom a Mental Health Review Tribunal has not expressed the opinion that their detention under the MHA is no longer necessary. However, in my judgment to do so would involve judicial legislation, a re-writing of the statutory provisions, rather than an exercise in interpretation; and section 3 does not permit judicial legislation: see Lord Hope in R v A (No. 2) [2001] UKHL 25, [2002] 1 AC 45, at paragraph 108; Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48, at paragraph 75. Section 74 of the MHA provides that detention under the MHA comes to an end not when the tribunal expresses its opinion in favour of the patient, but when either the Secretary of State gives notice to the tribunal that the patient may be discharged and the tribunal directs his discharge, or on his return to prison. The expression of opinion by the tribunal of itself is of no legal effect; so that, even if section 34(5) of the 1991 Act could be read as applying to persons in respect of whom a tribunal has expressed the appropriate opinion, the prisoner/patient remains detained under the MHA. In addition, as counsel for the Claimant rightly pointed out, the court would have to decide when the section 34(5) right arises: is it when the tribunal have expressed their favourable opinion under section 74(1)(a) or when the Secretary of State gives his notification under section 74(2) or on the expiration of the 90-day period referred to in that subsection? It seems to me that the resolution of these matters is for the legislature rather than the Court.
28. My conclusion, therefore, is that it is not possible to interpret the relevant legislation so as to avoid incompatibility with Article 5.
29. Additional questions arise if, in the circumstances under consideration, the DLP decide that the Claimant should be released on licence. In order to achieve his liberty he must be discharged from compulsory detention under the MHA. The decision of the Parole Board will not of itself achieve this. In argument I raised the possibility of interpreting section 50 of the MHA so as to impose a duty on the Secretary of State to exercise one or other of the powers conferred by paragraphs (a) and (b) of subsection (1) if a tribunal notify the Secretary of State in terms of section 74(1)(a) of the MHA and make a recommendation under section 74(1)(b). In fact, in Hickey, counsel for the Secretary of State accepted that the Secretary of State must exercise one or other of those powers if the precondition for their exercise has arisen. However, I have concluded that this is an incorrect and impermissible interpretation of the statutory provision. First, the plain words of section 50(1) confer a discretion on the Secretary of State whether to exercise either or none of the powers in question. Secondly, so to construe section 50(1) would also mean that the Secretary of State would be compelled to release a patient/prisoner from detention under the MHA on a notification by any registered medical practitioner that he no longer requires treatment in hospital or that there is no effective treatment for his disorder. That would impose the duty on the Secretary of State even in circumstances where the RMO was of a different opinion. Thirdly, it would deprive the Secretary of State of the option of complying with the recommendation of the tribunal under section 74(1)(b). In my judgment, these consequences render it impossible to construe section 50(1) so as to impose a duty on the Secretary of State.
30. Miss Lieven put forward a further possibility, namely that for the purposes of section 50 a prisoner's sentence expires when the DLP direct his release under section 34 of the 1991 Act. Section 50(2) automatically causes a restriction direction to cease to have effect on the expiration of a sentence of imprisonment. I do not think that the expression "expiration of the sentence" can be so construed. In my judgment, expiration of a life sentence occurs on the death of the person sentenced. If Miss Lieven were correct, section 50 would not apply at all after the DLP's decision. It is also impossible to reconcile her interpretation with subsections (1)(a) and (3). Subsection (2) refers to the "expiration of the sentence", i.e. the coming to an end of a finite term. Finally, while on Miss Lieven's interpretation a restriction direction ceases to have effect, the transfer direction does not, so that the patient remains compulsorily detainable. Miss Lieven suggests that the RMO or the hospital managers could be compelled by judicial review proceedings or by an application for a writ of habeas corpus to release a patient, given the hypothesis that a tribunal have decided that the criteria for compulsory detention have not been met. I do not think that the requirements of Article 5.4 would be satisfied if such proceedings were necessary: Benjamin and Wilson indicates that the court must itself have the legal power to direct discharge.

Does the legislation preclude a speedy determination of the lawfulness of continued detention?

31. I have considerable sympathy with the submissions of the Claimant under this head. Clearly, there is potential for considerable periods to elapse before the lawfulness of detention is determined both under the MHA and under the provisions relating to the detention of discretionary life prisoners: 12 months between application to a Mental Health Review Tribunal, plus the delay before a tribunal hears the application; a period of up to 90 days before the Secretary of State makes his decision under section 74(2)(b), and then some 24 or more weeks for the Parole Board application. It is difficult to reconcile that total period, with the requirement of a "speedy" determination. Article 5.4 requires, in the present context, not merely a "speedy" determination of an application or reference, but also that there should be reviews available of the lawfulness of detention at reasonable intervals: see Herczegfalvy v Austria [1992] ECHR 10533/83) at paragraph 75. In Oldham v UK (2001) EHRR 34, the European Court of Human Rights held that a period of 2 years between reviews was excessive. In Herczegfalvy itself, the Court held that periods between reviews of 15 months and 2 years were excessive. In Hirst v UK (application 40787/98: judgment 24 July 2001), the Court held that periods of 21 months and 2 years between reviews of the detention of a mentally ill discretionary life prisoner whose tariff had expired were excessive. Furthermore, unless there is objective justification for the requirement of successive and separate applications to two tribunals, that requirement may itself be inconsistent with the requirement of a speedy decision in Article 5.4.
32. However, it is not the practice of the European Court of Human Rights to lay down maximum periods for hearings under Article 5.4 in the abstract. It considers that the circumstances of the individual case must be taken into account: see Sanchez-Reisse v Switzerland (1987) 9 EHRR 71, at paragraph 55; Hirst v UK at paragraph 38 of the judgment of the Court. Similarly, in R (on the application of MacNeil) v Her Majesty's Prison Discretionary Lifer Panel [2001] EWCA Civ 448, the Court of Appeal stated that a two-year period between reviews was not necessarily excessive in terms of Article 5.4: whether a period was excessive depends on the facts of the individual case: see paragraph 17 of the judgment of Peter Gibson LJ, with whom the other members of the Court agreed.
33. In these circumstances, it is inappropriate to make any declaration in respect of the Claimant's submissions as to the impossibility of a speedy decision as to the lawfulness of his continued detention. If the Claimant considers that he is in fact suffering undue delay in the review of the lawfulness of his continued detention, his remedy is to apply to the court for judicial review at that stage.
34. I comment, however, that it would not be difficult to arrange for the lawfulness of the Claimant's continued detention under the MHA and the penal legislation applicable to him determined by a single tribunal. The members of the Parole Board already include legal and psychiatrist members of Mental Health Review Tribunals.

Relief

35. I shall hear counsel as to the form of the declaration to be made on the first issue.